Andhra HC (Pre-Telangana)
Dr.Damarla Savithri vs Kande Sreenivasulu on 20 March, 2014
Author: C.V. Nagarjuna Reddy
Bench: C.V. Nagarjuna Reddy
HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY ASMP.No.576 of 2013 20-3-2014 Dr.Damarla Savithri.. Applicant Kande Sreenivasulu.. Respondent !Counsel for applicant : Sri V. Rajagopal Reddy Counsel for respondent : Sri S.V. Ramana for Sri O. Manohar Reddy ? CASES REFERRED: 1. 2014(2) ALT 6 (SC) = 2013(14) SCALE 347 2. 2009(3) ALT 637 (DB) HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY A.S.M.P.No.576 of 2013 & A.S (SR) No.4021/2013 Date : 20-3-2014 The Court made the following: ORDER:
This application is filed for condonation of delay of 1808 days in filing appeal against the Judgment and decree dated 19-11-2007 in O.S.No.442/2004 on the file of the learned I Additional Senior Civil Judge, Nellore.
The respondent filed the above mentioned suit for specific performance of agreement of sale dated 18-8-2004. The applicant/defendant contested the suit. By Judgment and decree dated 19-11-2007, the learned I Additional Senior Civil Judge, Nellore, decreed the suit. Feeling aggrieved by the said decree, the applicant filed A.S.(SR) No.4021/2013. She has also filed ASMP No.576/2013 for condonation of delay of 1808 days in filing the said appeal. Along with the said application, the applicant filed an affidavit sworn to on 26-2-2013 wherein she has inter alia stated that in the E.P. the lower Court has executed registered sale deed in favour of the respondent; that initially she has filed I.A.No.148/2008 seeking cancellation of the Judgment and decree in O.S.No.442/2004 and the same was dismissed; that as advised, she has filed C.R.P.No.5252/2012 against the order passed in the said I.A; that later on the applicant was advised by her counsel that the relief claimed in the revision petition will not suffice and that therefore she has filed the present appeal with the delay of 1808 days.
The respondent filed a counter-affidavit wherein he has inter alia stated that as the applicant has not come forward to execute registered sale deed in pursuance of the Judgment and decree, he was constrained to file the E.P; that instead of filing the appeal, the applicant has filed I.A.No.148/2008 under Section 151 CPC for cancellation or revocation of the decree on the ground that the same was obtained by playing fraud and misrepresentation; that in pursuance of the order allowing the E.P., registered sale deed was executed by the lower Court in his favour on 15-9-2011; that after execution of the registered sale deed, the respondent has sold the property in favour of various individuals by means of registered sale deeds and possession was delivered and that thereby third party rights have come in. The respondent has accordingly strongly opposed the request for condonation of delay.
The applicant filed an additional affidavit on 5-2-2014 wherein she has averred that she is suffering from diabetes and hyper-tension from 15 years; that she has undergone stent operation in the year 2008; that during the year 2009, her husband was diagnosed to be suffering from liver cancer and that after being bed-ridden for nearly 2 years, he has passed away in Nizam Hospital in February 2012. The applicant has further stated that she was diagnosed as suffering from cardiac conduction defect and was advised pace-maker during October 2012 and that as she was feeling better, she has approached her counsel and filed the C.R.P. against the order dismissing I.A.No.148/2008 after the death of her husband and that in view of the said circumstances, she could not file the appeal in time.
Sri V. Rajagopal Reddy, learned Counsel for the applicant has placed before the Court, the Judgment of the Apex Court in Manoharan Vs. Sivarajan and others in support of his submission that the Courts have to adopt a liberal approach in considering the applications for condonation of delay.
It is trite that the Courts, as far as possible, have to adjudicate disputes on merits as the intendment of law is to decide the cases on merits rather than dismissing them on defaults. However, the law of limitation has been enacted with a view to put quietus to the litigation and to bring certainty over the litigation between the parties. While the person who offers reasonable or plausible explanation for the delay is entitled to indulgence of the Courts for condonation of delay, at the same time, Courts need to be conscious of the plight of the adversary party while considering such applications. A long drawn litigation would more often be a curse to the vexed litigant. As a coin has two sides, a dispute involves two warring parties. Excessive liberal approach in favour of one party will be the nemesis of the other party. Therefore, superior Courts have been time and again holding that a balanced approach is needed while considering the applications for condonation of delay. While dealing with this aspect, a Division Bench of this Court, speaking through me, in State of A.P. Vs. A. Murali Madhava Rao , held at paras-8 and 20 as under :
In Vedabai Alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil and others (2001) 9 SCC 106) and State of Nagaland Vs. Lipok Ao and others (2005) 3 SCC 752) the Apex Court made a delicate balance of the two extreme views, namely, strict approach and a too liberal attitude in considering the applications for condo nation of delay. In the first mentioned case, it was held that a distinction must be made between the case where the delay is inordinate and a case where the delay is of a few days and that in the former case the consideration of prejudice to the other side is a relevant factor so that the case calls for a more cautious approach, but in the latter case, no such consideration may arise and the same deserves a liberal approach. The Supreme Court further held that while no hard and fast rule can be laid down, the Courts should exercise the discretion on the facts of each case keeping in mind that in construing the expression "sufficient cause", the principle of advancing substantial justice is of prime importance. The Supreme Court further observed that in exercising their discretion, the Courts should adopt a pragmatic approach.
The intendment of law in prescribing limitation is to see that persons are not vexed with the litigation for unduly long periods and their legitimate expectation of receiving the fruits of success in litigation is not defeated after a certain period by dragging him to a further round of litigation. This legislative object based on public policy cannot therefore be frustrated by the officers at the helm of affairs by taking their sweet time and move at a pace which may put the proverbial snail to shame.
The three main tests to be applied while considering the applications for condonation of delay are (i) whether a party has offered explanation which can be termed as reasonable or plausible (ii) whether condonation of long delay will result in revival of a stale litigation causing undue hardship to the adversary party; and (iii) whether third party interests have been involved thereby unsettling their interests. The Judgment in Manoharan (1-supra) has reiterated the same guidelines which have been laid down by the Apex Court from time to time.
Applying the afore-mentioned tests to the case on hand, it is the case of the applicant, as noted hereinbefore, that due to the illnesses of herself and her husband, she could not file the appeal in time. Even accepting the facts pleaded by the applicant as correct, in my opinion, the applicant is not expected to put the litigation on hold for years on end on the ground of her and her husbands illnesses. Even on her own showing, the applicants husband was ill for more than 3 years. This does not mean that the applicants entire activities of life must come to a stand still and the respondents must be left guessing when she will overcome her personal problems and resume the litigation. The applicant being a doctor and well placed in the society is expected to make her own arrangements for entrustment of the case to a counsel on her behalf. As for her personal illness i.e., diabetes and cardiac treatment, the same will not justify the delay of more than five years in filing the appeal. On her own showing, the applicant has filed an I.A. in the suit in the year 2008 for setting aside the Judgment and decree. If she was really unable to file the appeal till the year 2013 due to her illness, it is not conceivable as to how she could file the said application in the year 2008. The applicant has not contested the E.P. and allowed an order to be passed therein. She has also allowed execution of sale deed by the Court on her behalf in favour of the respondent. The applicant has not denied the fact that in pursuance of the said sale deed, the respondent has sold the property to several persons and put them in possession. The applicant cannot leisurely approach this Court and seek to unsettle the things which have got settled due to her own default. Any interference by this Court at this stage would seriously jeopardise the rights of the third parties who purchased the property from the respondent. By her conduct, the applicant has disabled this Court from adopting a liberal approach in considering her application for condonation of delay. Therefore, I do not find any reason to condone the phenomenal delay of 1808 days in filing the appeal. The application is accordingly dismissed.
As a sequel to the dismissal of the application, ASSR No.4021/2013 also stands dismissed.
_______________________ Justice C.V. Nagarjuna Reddy Date : 20-3-2014